After The Fall

A Review of The Executive Unbound by Eric A. Posner and Adrian Vermuele

By Martin J. Salvucci

Spurred by the severity of the crises that bookended the Bush Administration, a growing cadre of left-leaning academic authors has unleashed a spate of popular monographs announcing inevitable fiscal, military, and political ruin. Chief among them, Bruce Ackerman's recent book, The Decline and Fall of the American Republic (2010), argues that the steady agglomeration of executive power threatens the fundamental nature of the American Constitution.

The much-anticipated publication of The Executive Unbound: After the Madisonian Republic (2011) marks the first book-length response to Ackerman's concerns, as well as the second book-length collaboration between Eric Posner and Adrian Vermeule, after their outstanding Perils of Global Legalism (2009). Law professors at the University of Chicago and Harvard, respectively, Posner and Vermeule claim to offer a strong rejoinder to the pessimism of the likes of Ackerman, with whom both authors share a longstanding academic feud. Given the high quality of the authors' previous collaborations—to say nothing of the aforementioned personal drama—it is not difficult to understand why expectations for The Executive Unbound were so high.

Posner and Vermeule begin with the provocative premise that the American Constitution—on whose behalf founding father James Madison is posthumously elected spokesman—has failed. Madison is taken to represent a perspective the authors label liberal legalism, which holds that the rule of law is grounded upon a system of checks and balances that maintains a more-or-less equal separation of powers. But the separation of powers, Posner and Vermeule opine, requires that each branch of government—executive, legislative, and judicial—claim some genuine political power vis-à-vis one another. Of course, that notional equality has—in practice, at least—proven to be a whimsical farce since the advent of the New Deal.

In the land of power politics that Posner and Vermeule describe, the executive branch has achieved near-hegemony over matters of state. Congress, then, is little beyond a sideshow, and the Supreme Court, well, is a nice building. The authors seem to think they've discovered something profound in detailing the rise of the executive-dominated administrative state. But the only reader for whom this ascendancy would be newsworthy is one that has spent the past sixty years in a coma. In fact, nearly every major social theorist of the postwar era—Jürgen Habermas chief among them—has grappled, more or less successfully, with the rise of the administrative state. Moreover, if legalistic voices like Habermas are to be believed, the putative demise of liberal legalism might be greatly exaggerated.

Strangely, none of this is of any consequence to Posner and Vermeule, whose cavalier reportage of the death of the American Constitution smacks more of failed aspirations toward an End of History one-liner than it does of dispassionate, scholarly analysis. Some readers might find what comes next to be yet more bizarre, even alarming. Enter Carl Schmitt, the Weimar-era German lawyer whose legacy as crown jurist of the Third Reich has outpaced his legacy as a political theorist. In a perverse twist of fate, it is this moment where the authors argument suggests maximal potential. His political baggage notwithstanding, Carl Schmitt was one of the most perceptive modern theorists of politics. Unfortunately, the authors reveal themselves to be painfully unaware of the most basic aspects of Schmitt's thought.

Aside from clichéd tropes like the sovereign is he who decides the exception (taken from Political Theology), and other quotations that may as well have been gleaned from a primer to the hitherto unpublished edition of Carl Schmitt for Dummies, the authors make no substantive use of Schmitt's rich and profound thought. Instead, Schmitt—or the highly superficial rendering that the authors provide—becomes a stand-in for two relatively trivial observations: 1) the executive has centralized all meaningful political power within the ascendant administrative state and 2) the actions of the executive are constrained by political—rather than legal (or constitutional)—concerns.

The combination of these observations yields little in the way of original scholarship. As indicated earlier, the first is available elsewhere to anyone willing to read a book, hardly a fortuitous development, given that there seems little reason then to read this book. Nor need Chicago readers cross the Midway for the second, which is available to any Chicago student willing to brave the prospect of coursework with Gerald Rosenberg, the distinguished scholar of American Politics with dual appointments in the Department of Political Science and the Law School. Rosenberg's well-argued meditations upon the entanglement of law and politics might prove instructive to both authors.

Perhaps because the authors reduce Schmitt to a shallow caricature, the role that he actually plays in their self-described Schmittian Model is relatively inconsequential. Instead, the Schmittian Model is presented with a set of highly simplistic rational-choice arguments, none of which seems to have anything to do with Schmitt. The basic conclusion: as citizens, we need not fear the rise of a unitary executive because the executive—as a rational actor, like any other—is constrained by public opinion. Strangely, the authors barely address the relatively obvious question of how public opinion on these superficially legal (or constitutional) issues is formed. Dare we suggest that quaint notions like the separation of powers might play a role?

Why, exactly, we should take these rational-choice arguments seriously is never stated. And unlike the calculations of economists—whose likeminded efforts may rest upon the majesty of incomprehensible mathematics, if nothing else—the various charts and graphs that the authors present in an effort to bolster and to clarify their claims lack any semblance of dispositive authority. Of course, there is majesty to the study of the law, despite the best efforts of Posner and Vermeule to disabuse their readers of it. Their self-conscious legal realism is so painfully exaggerated that we must wonder why exactly the authors even bother teaching the law. If nothing else, I suppose it's a paycheck.

Regardless, my advice is to skip this one until it is housed in the bargain aisle alongside the latest installments from the likes of Andrew Bacevich and Chalmers Johnson. Otherwise, it is sad to say, the search for a worthy successor to liberal legalism must continue. Until that search is completed, all of us must continue to make due with the naïveté of James Madison. And that's fine with me.